more on eminent domain...
I was thinking...under my model, how are even the more generally accepted exercises of eminent domain justified? I mean, namely, property taken for use by the government and property transferred to private developers for use by the public. This is a question that comes up in the line of reasoning that I used based on individual rights and the model set by the other provisions in the 5th amendment: those relating to the rights of the accused. The problem with the argument the justices Stevens and O'Connor make (which is cursory, at best, anyway, limited to mere lines) for the necessity of some form of eminent domain is that it's based on sovereignty claims. For instance, eminent domain is necessary because it makes a government sovereign. Of course, it is perfectly reasonable to reverse that argument and to say, 'eminent domain is only exercised by sovereign governments,' in which case it wouldn't be the power of eminent domain that makes it sovereign, but rather the fact that it is sovereign enables it to exercise the power. Either way, it's a useless and irrelevant argument. I say this because clearly, according to the
constitution, the PEOPLE are sovereign.
I really don't mean this as a facetious quip; the difference is important because the concept underlying the definition of sovereignty laid out by the Founders (and by their liberal predecessors, including John Locke) is one that denies the sovereignty of government as such (think contra Hobbes) and rather positions government as the agent of a sovereign people. I know this ignores a lot of intricacies (it's inevitable), but let's just leave it at that for now. This system inherently acknowledges a system of negative rights, in which the individuals making up the body politic retain basic rights that protect them against a government that might transform from an equitable facilitator of collective (and thus individual) interests and judgment into a body that looks after its own interests at the expense of certain individuals. This certainly supports my reading of the 5th amendment's eminent domain clauses, but it doesn't do much for any argument justifying the use of the eminent domain power. We are going to have to look back to the 5th amendment itself, to the "public use" clause. There are those who argue for the most narrow reading of this clause, saying that it doesn't grant the government power to take any private holdings for public use but merely warns against it. The more conventional reading is that takings for public use are warranted.
My task in this blog posting, as I see it, is to provide a theoretical justification for the latter reading that is nevertheless consistent with the analysis/recommendation I gave in the last entry on eminent domain.
There are also more issues at hand that I want to address, like the "libertarian," or conservative arguments against redistributionist policy, which are based on strict protection of private property, in a way. I fear that if I go too far in calling for limiting the government's power of eminent domain that it might infringe upon more socialist tendencies that I have (support for a Universal Basic Income, for instance). But I haven't yet had the time to write something out on this, not to mention give it the thought it deserves.
Speaking of lack of time, that is the current predicament in which I currently find myself. Therefore, this post is ....
TO BE CONTINUED...
constitution, the PEOPLE are sovereign.
I really don't mean this as a facetious quip; the difference is important because the concept underlying the definition of sovereignty laid out by the Founders (and by their liberal predecessors, including John Locke) is one that denies the sovereignty of government as such (think contra Hobbes) and rather positions government as the agent of a sovereign people. I know this ignores a lot of intricacies (it's inevitable), but let's just leave it at that for now. This system inherently acknowledges a system of negative rights, in which the individuals making up the body politic retain basic rights that protect them against a government that might transform from an equitable facilitator of collective (and thus individual) interests and judgment into a body that looks after its own interests at the expense of certain individuals. This certainly supports my reading of the 5th amendment's eminent domain clauses, but it doesn't do much for any argument justifying the use of the eminent domain power. We are going to have to look back to the 5th amendment itself, to the "public use" clause. There are those who argue for the most narrow reading of this clause, saying that it doesn't grant the government power to take any private holdings for public use but merely warns against it. The more conventional reading is that takings for public use are warranted.
My task in this blog posting, as I see it, is to provide a theoretical justification for the latter reading that is nevertheless consistent with the analysis/recommendation I gave in the last entry on eminent domain.
There are also more issues at hand that I want to address, like the "libertarian," or conservative arguments against redistributionist policy, which are based on strict protection of private property, in a way. I fear that if I go too far in calling for limiting the government's power of eminent domain that it might infringe upon more socialist tendencies that I have (support for a Universal Basic Income, for instance). But I haven't yet had the time to write something out on this, not to mention give it the thought it deserves.
Speaking of lack of time, that is the current predicament in which I currently find myself. Therefore, this post is ....
TO BE CONTINUED...